Mental retardation and its impact on responsibility for the unlawful act
Ali MUTASHAR ABDUL SAHIB
University of Baghdad/ College of Law
Muntaha MUTASHAR ABDUL SAHIB
University of Baghdad / College of Education for Pure Science – Ibn Al-Haitham / Department of Computer Science
Abstract: The research dealt with the study of the concept of mental retardation and its classification within the symptoms of eligibility that affect the human being affected in discrimination and thus in the civil responsibility arising from the harmful acts that can be issued from him.
Keywords: mental retardation, responsibility for work, damage caused by the mentally
Résumé: La recherche a porté sur l'étude du concept de retard mental et sa classification au sein des symptômes d'éligibilité qui affectent l'être humain affecté dans la discrimination et donc dans la responsabilité civile découlant des actes préjudiciables qui peuvent en découler.
Mots clés: retard mental, responsabilité du travail, dommages causés par le mental
Introduction
Mental retardation is one of the most important symptoms that may hinder the human capacity to affect it and arrange legal provisions different from those provisions that can result from the actions and actions of the human being if he is not mentally retarded and if the study of the contractual responsibility of the mentally retarded is of importance as the mentally retarded does not have the capacity that enables him to conclude contracts in the first place, and therefore it is unlikely that we find him in the position of the contractor who committed a contractual error in The study of tort liability for the mentally retarded is one of the topics of great importance, as it is possible that this person harms others, which requires studying this topic and showing the impact of this failure in tort.
Section One: The concept of mental retardation
First: Definition of mental retardation:
There are many definitions of mental retardation in the light of the dimensions through which those interested in mental retardation looked at this problem.The terms associated with mental retardation such as mental deficiency and mental retardation have multiplied, and most of these concepts are synonymous and lead to the same meaning. Despite the multiplicity of definitions of mental retardation, it has agreed that retardation is a state of cessation in the development of mental abilities that results in the inability of the retarded to understand, comprehend and learn, as well as his inability to adapt psychologically and socially for genetic or environmental reasons its .
DSM-IV defines mental retardation as significantly subaverage intellectual functioning (i.e., IQ no higher than approximately two standard deviations below the mean), which is accompanied by significant limitations in adaptive functioning in at least two of the following areas: communication, functional academic skills, health, home living, leisure, safety, self-care, self-direction, social/interpersonal skills, use of community resources, and work. Onset of these conditions must occur before age 18. The condition is further divided into four levels of retardation based on IQ, which include mild mental retardation (IQ between 50-55 and 70), moderate mental retardation (IQ between 35-40 and 50-55), severe mental retardation (IQ between 20-25 and 35-40), and profound mental retardation (IQ less than 20 or 25).
Second: Causes of mental retardation
Mental disability has multiple classifications according to the bases adopted in the classification, as follows:
1- Classification based on reasons.
2- Classification based on the severity of the disability.
3- Classification based on external appearance.
4 - Educational classification.
5- Classification based on adaptive behavior.
Therefore, in general, the causes of mental retardation can be divided into two parts:
1- Causes of mental retardation in the prenatal stage:
Some cases of mental retardation are due to genetic factors represented in the inherited formative influences producing certain traits that appear in the symptoms of some forms of mental retardation, which are transmitted through the inherited chromosomes from one generation to another, with the possibility of their disappearance in some generations.
2- Causes of mental retardation in the postpartum stage:
There are causes or factors that lead to deformities or infections in the infected person, or may occur during his birth, or may affect him during his early childhood, some infectious diseases such as meningitis, smallpox, diphtheria, and rubella may cause mental retardation.
Imbalance of endocrine secretions is also considered certain cases of under development, as in the case of thyroid damage or so-called hypothyroidism. The reason for mental retardation of the environment may be due to the material deprivation that some people live in.
What interests us in this research is the classification of mentally retarded people based on clinical pattern. They are classified into the following categories:
1. Moron: constitutes about 75% of the total mentally retarded. Their IQ ranges between 51-70 and their growth speed is three-quarters more than normal and their maximum mental abilities are between the ages of 7-10 years. They are characterized by poor ability to learn and cannot learn in the regular classes, but in special classes where they acquire the basics of reading and arithmetic. And simple thinking and do not exceed the primary stage. But they can work in simple crafts and may deviate into crime due to limited thinking.
2. Mbecile range from (20%) of the mentally retarded, and their IQ ratio between (25-50) and they are difficult to teach all subjects and cannot think or do work except taking care of themselves and meeting their needs after training them. Some members of this group can join vocational training and rehabilitation centers."
3. Idiots constitute (5%) of the mentally retarded. They are those whose IQ is less than (25) and need full care, as it is difficult to educate them or take care of themselves. They suffer from lack of discipline or responsibility, are unable to train, and have delays in speech, output and walking.
Subchapter Two: The Effect of Mental Retardation on Responsibility for Unlawful Act:
Mental retardation is one of the internal involuntary personal inhibition’s incidentals to human responsibility, which is not one of the subjective qualities necessary for man, but often a person is born safely, and then infected for subjective or external reasons, and is rarely born with the birth of man, and has a group of Al-Mamzat the most important of which :
1- It is not a human subjective, but is infected after being born unscathed in most cases, for congenital formative reasons, or accidental external reasons.
2- It is not a general symptom that exists in every human being, but the percentage of infected with it is very small, if compared to those who are unharmed.
3- After the injury of mental retardation, its demise is unknown and unrealized, depending on the type of retardation and the circumstances of the sufferer and the extent of its ability to disappear and cure with treatment.
It can be said that the harmful actions issued by the retarded, mentally, are considered involuntary facts, as the actor at the time of the issuance of the burden on him cannot determine the results of his act, whether good or evil, and right or wrong
Hence, his act is subject to the provisions of liability for the wrongful act (tort) and by referring to the provisions of this liability, we find that most civil laws have made this responsibility based on three pillars: error, damage and causal relationship. What it does from us in this research is to determine the error if the corner of damage and the corner of the causal relationship does not have privacy in the harmful acts resulting from the actions of the mentally retarded and the position of the laws of the responsibility of the mentally retarded.
First: Elements of error: The error pillar is based on two elements:
1. Infringement: The element of infringement is based on the fact that the person's behavior is not approved by the law, and the disposition in this regard can be seen from both positive and negative sides, on the positive side, a person is a transgressor when he performs a material work if he exceeds the limits that he should have committed when doing the work. On the negative side, a person is transgressive if he fails to do a material act that he should have done
2. Perception: The prevailing opinion is jurisprudence and judiciary goes to the fact that perception is an element in the error, and the error is not achieved without it , and therefore the mentally retarded cannot be based on their responsibility, as long as this responsibility is based on error, must realize who wants to estimate his responsibility what the act that is done by him, and the damage that will result from it to others , as it is not enough to do The error provides its material element alone represented by infringing on the right of others, but in addition to that, the person can be blamed for his work. Blame requires that a person be distinguished and can distinguish between what is wrong and what is right.
Second: The position of the laws on the responsibility of the mentally retarded:
The Egyptian Civil Law (6) stipulates in Law 164 that the perpetrator of the harmful act must be aware of so that he can be held accountable for compensation.
The same is the case in Law 165 of the Syrian Civil Law , these laws that required awareness of the establishment of responsibility for the harmful act, and thus made the responsibility of the mentally retarded a reserve responsibility, the reader of these texts finds that they make the responsibility of the mentally retarded a mitigated permissible reserve responsibility, it is a backup responsibility, Because it does not result unless there is no one who is responsible for the mentally retarded or found and his responsibility is absent, or it is not possible to obtain compensation from him, which is a permissible responsibility because the assessment of the judgment is up to the court, it may award him compensation if it finds that his financial situation allows the judgment.
It may not award compensation if it is convinced otherwise. It is a mitigated liability because the judge does not oblige the non-discriminatory person to pay full attention and it is awarded fair compensation, taking into account the financial situation of both the non-discriminatory and the injured person and the gravity of the damage.
He criticized the requirement of awareness to be able to err because of the failure to appreciate the responsibility of the unconscious, including the mentally retarded from justice.
As for the Iraqi legislator, he had a different position on the responsibility of the mentally retarded affectedbyIslamic jurisprudence in Law (191) of the Iraqi Civil Law as it ruled on the responsibility of the non-discriminatory and made his responsibility an original responsibility not a reserve as is the case in the laws of the Arab countries, so he returns If the injured person has no property, if he has no money, he shall return to the guardian, guardian or trustee. However, the Iraqi legislator made the liability of the non-discriminatory or his representative a mitigating liability that does not amount to full compensation, as the judge was obliged to take into account the status of the litigants and in this mitigation of responsibility .
Conclusion:
Research Results:
The research reached results that indicate that:
1- Mental retardation means a halt in the growth of mental and life abilities, as it results in the inability of the retarded to understand, assimilate and learn, as well as his inability to adapt psychologically and socially for reasons of vision or environment.
2- From the classification of the causes of mental retardation, we can divide the causes into two parts, the first goes back to the prenatal stage and the second goes back to the postpartum stage.
3- Mental retardation is an intrinsic personal involuntary inhibition of human responsibility.
4- The harmful actions of the mentally retarded are involuntary facts.
5- The prevailing opinion in jurisprudence and judgment that the mentally retarded cannot be held civilly accountable as long as the element of error requires the element of perception.
6- Most civil laws have reversed the prevailing opinion in jurisprudence and the judiciary by establishing the accountability of the mentally retarded with a reduced permissible precautionary responsibility.
The Iraqi legislator has made the responsibility of the mentally retarded, as required by Law 191 of the Civil Law, an original and mitigated responsibility
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